JUDGMENT

Ghulam Hasan, J - This is a criminal reference by the learned Sessions Judge of Lucknow, recommending to this Court that the sureties Imam Beg and Hari Har Gangoli may be directed to pay Rs. 250 each and not Rs. 500 each as ordered by the Magistrate. It appears that one Dwarka was charged with an offence under Section 457, Penal Code. He was called upon to furnish two sureties for his appearance before the Magistrate. Accordingly Imam Beg and Hari Har Gangoli executed a bail bond on 16th September 1940, as required by Form 42, Schedule 5, Criminal P.C. The bail bond executed by the two persons aforesaid is in strict accordance with Form 42 of Schedule 5. It appears however that although the two persons jointly and severally declared themselves as sureties for the accused, Dwarka, the bail bond mentions that they bound themselves to forfeit to His Majesty the King-Emperor the sum of Rs. 500 each. According to the report made by the learned. Magistrate, Dwarka had been ordered to be released on furnishing two sureties of Rupees 500 each, that is to say, in the aggregate amount of Rs.1000. Dwarka did not appear on 6th January 1941, the date fixed by the Court. Learned Magistrate accordingly called upon the two sureties to pay Rs. 500 each.

2. The learned Sessions Judge in revision expressed the opinion that in drawing up the bond the mistake was committed inasmuch as two figures of Rs. 500--Rs. 500 were inserted for the amount for which the sureties bound themselves, implying thereby that each of them was liable to forfeit Rs. 500 although the bond contemplated that they were jointly and severally liable for Rs. 500 only. I regret I am unable to concur in this view. The bail bond in question clearly contains the words "mubligh panch so panch so fee has rupiya." This leaves no room for doubt that each of the sureties had agreed to bind himself to forfeit a sum of Rs. 500 and not a sum of Rs. 500 in the aggregate as held by the learned Sessions Judge. There can be no doubt that the extent of the liability of the sureties can be determined by the terms and conditions of the bail bond. It is clear in the present case that the Magistrate also by his order directed the sureties to furnish surety of Rs. 500 each and the bail bond, which was executed by the sureties, was so executed in accordance with the order of the Magistrate.

3. The case of the Nagpur High Court reported in Namdeo v.Emperor, A.I.R. 1938 Nag. 275, relied upon by the learned Sessions Judge has no application to the present case. In that case the sureties had signed a bond for Rs. 2000 only, and not for Rs. 2000 each, and consequently they were jointly and severally responsible between themselves for the aggregate amount of Rs. 2000. It was, therefore, rightly held that not more than a total sum of Rs. 2000 could be recovered from the sureties. I hold, therefore that each of the two sureties was liable to forfeit Rs. 600, and not Rs. 250 as held by the learned Sessions Judge. Having regard to the circumstances of the case, I am of opinion that the entire amount should not be forfeited. The sureties have produced an affivadit before me to the effect that the accused Dwarka, for whom they stood sure-ties, was arrested by them on 30th August 1941, and has been handed over to the police station Wazirganj, Lucknow. The affidavit also states that the accused has been produced before the learned Magistrate, who had ordered the forfeiture of the sureties. It has also been represented to me that both the sureties are men of small means and are employed as servants on small pay. In the circumstances I order that the amount to be forfeited shall be reduced to Rs. 500 in the aggregate, namely that each of the two sureties Imam Beg and Hari Har Gangoli will pay Rs. 250 only. This course is justified by the view taken in Jora Singh v. Emperor, A.I.R. 1933 Lah. 42. Accordingly I modify the order of the Magistrate and accept this reference, though for different reasons.